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| TITLE | Supreme Court Decision 2023Du32709 Decided October 16, 2025 【Revocation of Correction Order and Surcharge Payment Order】 [full Text] |
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| Summary | |
| 【Main Issues and Holdings】 [1] Method of determining whether “unfairness,” which is one of the requirements for the constitution of a discriminatory act of abusing a market-dominant position by a market-dominant business entity stipulated in Article 3-2(1)3 of the former Monopoly Regulation and Fair Trade Act, is recognized Method of determining whether the discriminatory act, as “an act likely to result in the competition-restraining effects, had an intention or purpose for such effects” to prove this Whether this is likewise applicable even in a case where an act of a market-dominant business entity, which is an online platform business entity, discriminating in favor of its own goods or services over those of competitors comes into question (affirmative) Where the restrictive effects on competition in a market that is different from a market where an act of a market-dominant business entity holds a market-dominant position or the act is conducted comes into question, the matters to be proven by the Fair Trade Commission alleging such effects [2] In order for “customer attraction by fraudulent means,” as defined under Article 36(1) [Appendix 1-2] Subparag. 4(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, to be constituted, whether the result of the fraudulent enticement should occur in addition to the risk of misrepresentation (negative) In such a case, meaning of “misrepresentation” and “risk of misrepresentation” Purpose of prohibiting an act of enticing customers by fraudulent means Method of determining whether a business entity’s act, as an unfair trade practice, corresponds to an act of enticing customers by fraudulent means. [3] Requirements needed to correspond to a “transaction condition discrimination” stipulated in Article 36(1) [Appendix 1-2] Subparag. 2(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act [4] In the case where, with regard to an act of Stock Company A, while operating a comparison shopping service, making multiple adjustments and changes to its algorithm to ensure that the products of business entities listed on its open market platform were displayed higher in search results, the Fair Trade Commission issued a corrective order and a surcharge payment order to Stock Company A, on the grounds that such act constituted a discriminatory act of abusing a market-dominant position, an unfair trade discriminatory act, and an act of unfairly enticing customers under the former statutes or regulations relevant to monopoly regulation and fair trade, the case holding that the lower court, which viewed that the above act constitutes a discriminatory act of abusing a market-dominant position, an unfair trade discriminatory act, and an act of unfairly enticing customers as unfair trade practices, erred and adversely affected the conclusion of judgment by misapprehending the legal doctrine | |
